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Sunday, 8 July 2012

Thinking of Austrian accessproviders, the IPKat dreamsof more than the internet ...

Once upon a time, Austria was regarded by many people -- including non-Austrians -- as a jurisdiction of pivotal importance since the country, then recently admitted to the European Union, was depicted as the Gateway which linked the capitalist West to the socialist East. Since those days the European Union has crept steadily eastward, to the point at which Austria is now much closer to the EU's heart.

It is sometimes overlooked that there is quite a bit of intellectual property litigation in Austria, much of which is actually or potentially instructive for the rest of us. In this context the IPKat would like to thank Adolf Zemann for telling him about a recent Austrian Supreme Court order (4 Ob 6/12d), referring a number of questions to the Court of Justice of the European Union for their careful consideration. The following translation is Adolf's:

1. Is Article 8(3) of Directive 2001/29 (the InfoSoc Directive) to be construed in such a way that a person who makes available subject matter of protection on the internet without the rightholder's consent (Article 3(2) InfoSoc Directive) uses the services of the access providers of such persons who access this subject matter? [The defendant in the case at hand is one of the biggest access providers in Austria, Adolf explains]

If question 1 is answered in the negative:

2. Are a reproduction for private use (Art 5(2)(b) InfoSoc Directive) and a transient and incidental reproduction (Art 5(1) InfoSoc Directive) legitimate only in such cases in which the template for the reproduction has been lawfully reproduced, distributed or made available to the public? [This question is not only relevant for the question whether downloading content from "illegal" sources is legitimate or not -- which may also have consequences pursant to criminal law provisions (if such provisions exist in the national copyright acts) -- but also concerns the issue of whether such downloads can/must be taken into account in copyright levy schemes]

3. If the answer to question 1 or 2 is affirmative and injunctions under Art 8(3) InfoSoc Directive against the access provider of the user shall therefore be issued: does it comply with EU law, in particular with the requirement to strike a fair balance between the fundamental rights of the parties involved, to generally prohibit an access provider (that is without ordering specific measures) from enabling its customers to access a specific website, as long as exclusively or predominantly content is made available without the rightholder's consent on such website, if the access provider may avoid coercive penalties based on a violation of such prohibitive order by proving that it has taken all reasonable measures? [The Austrian Supreme Court wants to know - considering the decisions of the CJEU's in C-70/10 and C-360/10 - whether general injunctions may be issued, if enforcement in case of violations of such injunctions (in Austria by coercive penalties - or even coercive detention) is not possible if all reasonable measures are taken; which inevitably leads to the question, which measures are reasonable in such cases]

4. If question 3 is answered in the negative:

Does it comply with EU law, in particular with the requirement to strike a fair balance between the fundamental rights of the parties involved, to order an access provider to take specific measures, to make access to a website containing illegitimately made available content difficult for its customers, if such measures require a not inconsiderable effort, but may be circumvented easily without need of special technical skills? [the Austrian Supreme Court is asking for guidelines to assess wheter a specific measure for blocking access is proportionate]

Questions 1, 3 and 4 are not only relevant in regard to copyright, observes Adolf, but also concern trade marks, patents, designs and so on. You can read the Supreme Court's order in the original German here.

Merpel is disappointed that the Austrians are still so coy about naming their litigants: if this reference gets as far as an Advocate General's Opinion and a Court of Justice ruling, aren't we all going to find out who C***** GmbH, *****, W*****gesellschaft mbH and the other ***** are?

2 comments:

Anonymous
said...

Merpel should realise it's a "fill in the blanks" game provided by the Austrian court for the enthusiastic readers of its decisions. Using the facts as given in the order, my guess is Constantin Film, Munich; Wega Film, Vienna, and UPC. I could be wrong of course!

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